This is a guest post by Carissima Mathen, who is an Associate Professor in the Faculty of Law at the University of Ottawa.

Having done an initial pass of the Supreme Court decisions issued today, my main sentiment is….admiration (not least, for the unanimous opinion). I think the Supreme Court has done its utmost to consider all sides, even if I don’t necessarily agree with everything it said.

First, some background. The Mabior 2012 SCC 47 and DC 2012 SCC 48 appeals presented the Court’s first opportunity since 1998 to consider the difficult issue of how the law should deal with someone who fails to disclose his HIV-status to a sexual partner. In R. v. Cuerrier[1998] 2 S.C.R. 371 the Court in three separate opinions agreed that, in some circumstances, failure to disclose will vitiate consent. It relied on both the common law and statutory provisions around “fraud”. But, in order to avoid an overbroad approach to criminal liability, the Court inserted an important caveat: any deception must pose a “significant risk of serious bodily harm”.

In the intervening fourteen years, our knowledge and treatment of AIDS-HIV has advanced. AIDS is no longer a fatal illness, though it still is a profoundly serious medical condition. But medical therapy can lower a person’s risk of transmitting the disease, as can the proper use of condoms. What impact, if any, should this have on the duty to disclose?

In an article,HIV, Consent, and Criminal Wrongs I co-authored with Michael Plaxton last year, I argued that the focus on “risk” is unfortunate, because it obscures a more fundamental issue: the ability of every person to decide for themselves the scope and risk of their sexual activities. Any criminal culpability, then, lies not just in exposing someone to risk of transmission, but in overriding that person’s ability to choose for him or herself. The approach, I believe, is bolstered by the Criminal Code’s language concerning “consent”, as well as by prior Supreme Court decisions in cases like R. v. Ewanchuk [1999] 1 S.C.R. 330 and R. v. J.A.2011 SCC 28.

Today the Supreme Court of Canada decided not to jettison Cuerrier, as many have urged it to do (some on grounds that Cuerrier is too harsh, and others on the basis that it is under-protective). The essential problem the Court faced is interpreting criminal provisions crafted in general terms (“consent”, “fraud”), when it is (rightly) cautious about expanding the scope of liability of its own accord. So, in Mabior, the Court again extolled the virtues of an “incremental” approach. In this case, that meant clarifying the Cuerrier standard of “significant risk of serious bodily harm” to require a “realistic possibility of transmission of HIV”. In particular, the Court stated, a “realistic possibility” does not exist where a defendant had a low viral load, and used a condom.

In my opinion, Mabior is a marked improvement over Cuerrier both because it is much more systematic in its approach; and because it more fully considers the parameters of consent; the special nature of sexual assault; and the vital importance of safeguarding personal autonomy.

In the wake of today’s decisions some persons have expressed shock that the Court was not prepared to say that condom use, alone, eliminates criminality. Given that condom use often is touted as reducing the risk of transmission to virtually zero, why would the Court have required both viral load and condom use before the duty to disclose may be dispensed with? I think the answer is that the Court rightly acknowledged (far more than it did in Cuerrier) that the failure to disclose severely affects another’s personal autonomy.

Mabior does not answer all the thorny questions that surround this issue. For example, has the Court’s insistence on condom use essentially placed a de facto obligation to disclose on women engaging in heterosexual intercourse? Assuming that the regular burden of proof applies (and there is no indication that it would not), how will such trials proceed? What will provide an “air of reality” to the two criteria? What kind of evidence will Crowns be able to adduce, and how feasible is it going to be to disprove beyond a reasonable doubt a “low viral load”? For clarification of these issues, we must await future cases, unless, of course, Parliament bestirs itself to step up to the plate. In Mabior, the Court has clearly signalled how far, without further statutory direction, it is willing to go.

Comments

Don’t be misled. This is not entirely accurate: “In particular, the Court stated, a “realistic possibility” does not exist where a defendant had a low viral load, and used a condom.” At least not as a statement of precedent.

What the SCC did say was “On the evidence before us” (ie the evidence of the expert witness in the case)the realistic possibility of transmission was negated by the low viral load and condom use evidence. Keep in mind, the Court also said: “Judicial notice is not available here and cannot form the basis for formulating general propositions relating to the factual issue of risk”.

So this case is of very little assistance to any person with HIV wondering if it is criminal to have sex without disclosure if they have a low viral load and use a condom. Maybe it is and maybe it isn’t – it will all depend on the expert retained to testify at trial. And the surprising mention of a “tactical” reverse onus on this issue means the HIV infected had better have the resources to retain a good expert before they decide to have sex without disclosure.

Yes, on their own paras 94-95 and 103 could be read to suggest that, but I think it is overly narrow given: the Court’s stated motivation to provide more clarity to people with HIV; its rejection of an absolute duty to disclose; and the difficulty of proving realistic possibility beyond a reasonable doubt in the face of low viral load AND condom use.

I was surprised to see mention of the tactical burden too. The language is unclear – a “tactical” burden is strictly speaking different from a “evidentiary” one and it prefaced by the statement “the normal rules of evidence and proof apply” so this clearly is not a reverse onus. I don’t like talk of the accused having to “raise a reasonable doubt” either, but realistically, that’s what the accused is going to try to do in any case.

But (in response to M McGuire): the question is whether one has had sex with someone who did not give informed consent. It is VERY easy to avoid criminal prosecution, without agonizing over the expertise of one’s eventual witness at trial – disclose one’s status. If one has a low or negligible viral load and a condom is used, then there appears to be very little risk.

It may be that one will have a harder time getting a sexual partner if one discloses, but how does one show respect for, much less satisfy one’s legal duty to, one’s partner otherwise? One does not have a legal right to sex in every circumstance, and in particular not without a meaningful consent.

The technicalities of defending against the criminal charge are minor in comparison, it seems to me.